Ethical Rules for International Arbitrators - 9

Ethical Rules for International Arbitrators - 9

Ramon Mullerat OBE


4. Exceptions to confidentiality

The duty of confidentiality is not absolute. There may be some cases in which confidentiality may be broken. The authors 25 mention: accountability, threats, reports of crime and abuse, whistleblowing.

However, as it happens with the confidentiality duty in the legal profession, justifiable as may be the case, we must be careful to expand the confidentiality exceptions since people might be discouraged to use the process 26.

5. Rules

Amongst the rules, which contain the most complete regulations on confidentiality, the following may be highlighted:

The London Court of International Arbitration (LCIA) Rules in addition to providing for hearings to be in private (unless the parties agree otherwise), upon revising its rules in 1.998, the LCIA included as art. 30 the following provision:

"30.1 Unless the parties expressly agree in writing to the contrary, the parties undertake as a general principle to keep confidential all awards in their arbitration, together with all materials in the proceedings created for the purpose of the arbitration and all other documents produced by another party in the proceedings not otherwise in the public domain, ~ save and to the extent, that disclosure may he required of a party by legal duty, to protect or pursue a legal right or to enforce or challenge an award in hona fide legal proceedings before a State Court or other judicial authority.
30.2 The deliberations of the Arbitral Tribunal are likewise confidential to its members, save and to the extent that disclosure of an arbitrator's refusal to participate in the arbitration is required of the other members of the Arbitral Tribunal.
30.3 The LCIA Court does not publish any award or any part of an award without the prior written consent of all parties and the Arbitral Tribunal".

The AAA International Arbitration Rules, as amended on 1 November, 2001, provide that hearings are private, awards may not be made public and that confidential information disclosed during the proceedings may not be divulged by the tribunal. Interestingly, this latter requirement is not imposed on the parties themselves. Art. 34 provides: "Confidentiality information disclosed during the proceedings by the parties or by witiiesses shall not be divulged by an arbitrator or by the administrator. Unless, otherwise agreed by the parties, or required by application law, the members of the tribunal and the administrator shall keep confidential all matters relating to the arbitration or the award". Arts. 5.5 and 14.2 of the Rules of Arbitration of the International Arbitral Centre of the Austrian Federal Economic Chamber provide similar protection to that set out in the AAA Rules, Arbitrators are bound to "observe secrecy in respect of all matters that come to their notice in the course of their duties", but no such duty is expressly imposed upon the parties. Hearings may not be held in public. The Stockholm Chamber of Commerce Arbitration Rules provide that the SCC Institute and the Tribunal but not expressly the parties -should keep the arbitration confidential (arts. 9 and 20(3)). Art. 43(1) German Institution of Arbitration Rules provides: The parties, the arbitrators and the persons at the DIS Secretariat involved in the administration of the arbitral proceedings shall maintain confidentiality to all persons regarding the conduct of arbitral proceedings and, in particular, regarding the parties involved, the witnesses, the experts and other evidentiary materials. Persons acting on behalf of any person involved in the arbitral proceeding shall be obligated to maintain confidentiality.

The China International Economic and Trade Arbitration Commission ("CIETAC") Arbitration Rules expressly stipulate that the parties, witnesses, tribunal and secretariat "shall not disclose to outsiders the substantive of all procedural matters of the case."
The Rules of Commercial Conciliation and Arbitration of the Dubai Chamber of Commerce and Industry provide (art. 7): "All information provided by the parties requesting ... arbitration shall be considered confidential, and a person who becomes aware of such information due to his position shall not divulge its contents except with the consent of the parties or pursuant to an order of a competent judicial authority".


6. Confidential evidence

Up to here we have analysed confidentiality as a right and duty for arbitrators generally not to disclose the information that they have received in the course or related to the arbitration proceedings. A separate issue is the legal privilege to withhold certain testimonial or documentary evidence from an arbitration proceeding. There is no universal approach to the question and evidence rules vary substantially from jurisdiction to jurisdiction. Therefore, the arbitration tribunal has the ultimate power to determine procedural rules. Another is the communication between lawyers with the purpose to attempt to compromise a dispute between the parties (what in common law tradition is known as "without prejudice"). Again the attitude of the different jurisdictions is different, particularly between civil law and common law traditions. Therefore, the arbitration tribunal will have to decide whether to admit or refuse such evidence balancing in each case the need for the information against the privilege claimed and other circumstances of the case 27.


VI. Dedication

The time consuming process, which resorting to ordinary justice involves is one of the main reasons why parlies decide to go to arbitration. By using arbitration, the parties wish to obtain a fair but quick and economical solution.

Asides from being competent, the arbitrator must also have sufficient time and use the necessary diligence in order to sufficiently impulse the arbitration procedure.

A prospective arbitrator should accept an appointment only if he is able to give the arbitration the time and attention which the parties are reasonable entitled to expect (art. 2.3 1BA, Rules of Ethics) and shall do his best to conduct the arbitration in such a manner that costs do not rise to an unreasonable proportion of interest at stake art. 2.5 y 6, ClARB, Guidelines of Good Practice, art. 9 of the Rules of Arbitration of the International Court of Arbitration; art. 10.2 Geneva Arbitration Rules; art. 13 Milan Code of Ethics, etc. With regard to lawyers, art. 3.1.2 of the CCBE Code provides that "A lawyer shall not accept instructions unless he can discharge those instructions promptly having regard to the pressure of other work".

25 Kevin Gibson, "Confidentiality in mediation. A moral reassessment", J. Dispute Resolution. 1992 back
26 Ramon Mullerat, "Lawyers: between maintaining trust, keeping gates and blowing whistles", speech at the International Symposium on Gatekeeper Regulation of Practising Attorneys, Tokyo, 2003. back
27 Norah Gallagher, "Legal privilege in international arbitration", International Arbitration Law Review. 2003, Issue 2, p. 45. back